Posted
by
samzenpus
on Tuesday November 15, 2011 @02:24PM
from the who'd-click-without-reading? dept.

ideonexus writes "CNET has obtained a statement to be released by the Department of Justice tomorrow defending its broad interpretation of the Computer Fraud and Abuse Act (CFAA) that defines violations of 'authorized access' in information systems as including any act that violates a Web site's terms of service, while the White House is arguing for expanding the law even further. This would criminalize teenagers using Google for violating its ToS, which says you can't use its services if 'you are not of legal age to form a binding contract,' and turns multiple attempts to upload copyrighted videos to YouTube into 'a pattern of racketeering' according to a GWU professor and an attorney cited in the story."

For a second there I thought the Obama Administration (and government in general, for that matter) had a sudden attack of conscience and decency. For that second I actually got to believe that it was even *remotely* possible that a government official might actually take the side of the vast majority of citizens and consumers in America, as opposed to functioning exclusively as the slavering lapdog of corporate America. In a brief instant I got to see what the U.S. might look like if we were an actual democracy instead of just a poorly-disguised corporatocracy.

The Obama administration was doomed at the onset. EVERYBODY... look at who our Vice President is. Mr. Biden has been a hit man for Hollywood and the Recording industry for... let's just say a long time. This has made him a profound antagonist for Silicon Valley, Open Source, Net Neutrality and a free (as in liberty) national infrastructure for the transmission of ideas and human artistic expressions which are free (as in beer) goes dead against everything he's been paid to think.

These are polarizing times and laws like the ones mentioned in the article above effectively criminalize the internet for the very people for whom it is most urgently needed (i.e. the next generation.) As long as we see fit to eat our own young in name of corporate greed, and hold onto every bit of IP with a white knuckled death grip, we will continue to see the borderline sociopathic and megalomaniacal demand greater control on every word, thought, feeling or human hope. To these despots, the First Amendment is a blasphemy, and until every man, woman and child pays them for the privilege of having a thought(tm) there is more dirty work to be done in Washington.

I have a feeling this won't hold up in court, no matter what the DOJ wants. If nothing else, treating ToS as legal documents would be a jurisdictional nightmare. For instance: Would you have to abide by Facebook's ToS on every site with a "Like" button and a FB tracking cookie? If I write in my site's ToS that all spam is unauthorized access, can I get Jeff Bezos thrown in jail every time Amazon sends me another coupon I didn't ask for?

A Terms of Service is a contract between private parties, not a statute or a penal code, and they are regularly thrown out of suites for a varity of reasons. Frankly I'm stunned this sailed through, aside from the fact that it was a closed door, back room deal. There's no way this can stand up to scrutiny. One thing's for sure, its obvious the WH is a corporate tool.

Its extremely difficult to felate the XXXXX-AA (pick your media organization here), and write a meaningful law that makes any sense at the same time. I think it has something to do with reduced oxygen transport to the brain and possible concussion.

Really??? So, if Slashdot adds a term in their TOS that you are not allowed to have a username that starts with a 'b' then you would be in violoation of their TOS and have just committed a crime... And you're OK with this?

It strikes me that they are trying to equate "unauthorized access" of a computer to trespassing. The hitch is that the two don't equate very well, as unauthorized access will vary from situation to situation whereas trespassing is strictly defined. For instance trespassing:

I invite someone over for dinner.
I tell them I have a no shoes in the house rule.
They refuse to take off their shoes.
I tell them to leave, but they refuse.
They are trespassing because they refuse to leave, not taking off their shoes isn't relevant.

Unauthorized access:

I invite someone over for dinner.
I tell them I have a no shoes in the house rule.
They refuse to take off their shoes.
They would now be in criminal violation, just because they didn't follow my rules.

Sorry to reply to my own post, but there is another reason that unauthorized access and trespassing shouldn't be treated the same: physical presence and intent. In order to trespass I believe you have to know you are doing so and be physically present, hence the need for no trespassing signs. But it's completely possible to access a website by accident.

One of my old coworkers once got our office IP address banned by Google. He had decided to *ahem* automate his porn collection by writing a recursive spid

Indeed. Unauthorized access should be 'using the site when you are clearly forbidden to'. Aka, when you hack someone else's password or something.

It is exactly analogous to trespass, but with trespass law, we have very clear laws. And people can't put up signs that say 'You can only enter if you do eight thousand different things I will specific in this fine print here or you're trepassing'.

No. They can say 'No trespassing' or 'Authorized access only', and people must assume they need to get permission first. They can put up a gate or lock a door, and people must assume they need to get permission first.

They can't have a fricking path and post rules saying 'you can use this path only if you do X', and then have people arrested for trespass who break the rules. That is not possible under current law. And they certainly can't stand there and have a doorman let people in (You know, like automatically making an account.) and then have the person arrested for trespassing later.

Breaking rules is not trespassing. And it is not unauthorized computer access if someone breaks rules. The only rule is 'Was there some indication that people were barred in general? If not, were you somehow specifically barred from access?'

And, no, you're not required to do any math there...they can't say 'You are barred if you break the rules.' You have to actually be specifically barred. This isn't some goddamn logic problem.

Hell, in the real world, sometimes you can ban 'certain things' from your property, like 'solicitors'...and this requires a law defining what those are and that people can rightfully ban them. People aren't allowed to make up their own restrictions and sic the police on people who don't agree with what that restriction means. There are specific rules about how and what the few things you can put on a sign. (Hours of access are a common one.) And this sign must be publicly posted in a specific way.

Or, in another example, casinos can't post a sign saying 'No card counters allowed', and have card counters arrested for trespassing. They can have a rule against that, and throw them out, and have them arrested for trespassing if they come back...but not for breaking the 'access rule' in the first place.

But, apparently, we've decided that web sites should have near infinite power to have any visitor arrested. All they have to do is come up with some vague rule, or, hell, a rule that every visitor violates, like 'This site may only be accessed between using IE 5', and they can have people arrested at will.

That's not clear at all. Do you think landlords should be able to charge their tenants with criminal acts for being late on rent? Typically speaking most contracts can be broken without committing a criminal act. It's a terrible idea to enforce contracts or TOS through criminal law.

Fact is, a website is someone else's property, and violating someone else's rules on their property is, at the least, a violation of an agreement.

So what? Its a violation of an agreement. They can try and sue you for damages if they feel they've been harmed enough to be worth it.

But to make it a crime is absurd. Think about what it means for something to be a crime. The police are involved... you are arrested, you get a criminal record... because your a criminal if you commited a crime.

If I order a thousand widgets from your company, and we sign a contract that you'll deliver them May 1st. If your late... you've just violated our signed contract... that's way more forceful than a ToS fine-print on a website... and that's not a crime. Can you imagine a world where it was. You miss that May 1st deadline... and the police show up to arrest you for committing a crime

Next time your late on a cell phone bill payment... your arrested. You agreed to pay them $X by y date, even signed a contract.

Next time your late bringing in a library book; well you've already got a criminal record for the cell phone crime... I guess you get hauled of to PMIA prison, you repeat offender.

Violating a contract shouldn't be a crime. Violating a ToS even less so.

Thus, Obama is Holder's boss and can [to my knowledge] fire him at will.

Why Obama hasn't yet done so is a mystery to me. There's some pretty crazy stuff coming up the pipeline from the "Fast and Furious" scandal.

It's off topic, but I'll explain a little. The program "walked" guns (via drug cartel smuggling networks) into Mexico without a) keeping track of the guns, b) informing Mexican authorities, or c) ending the program (the last two points differentiate it from a similar failure during the Bush administration). Then a federal law enforcement officer died in a shootout that included two guns from this program.

Oh it's much, much worse than that once you start looking into. You know being a canuck, I really didn't believe the whole conspiracy thought that the F&F scandal was an attempt at restricting the 2nd amendment. Those gun nuts though? They were spot on call it as it was, especially when you see how much Holder had his hands in it.

After so many lies and disappointments from this administration, I'm curious why you or anyone would expect otherwise, though I disagree with your "corporatocracy" remark as this is an expansion of government power.

Yep, this means corporations are writing the laws. You can only be criminal for breaking laws. Breaking ToS is criminal, therefore they have written laws.

With Bush, there was the perception something could be done about it. There was an opposing side, that didn't always do the right thing, but occasionally stood against the extremes.

Obama stood as that, stood as "Change", and then gave us a big "Fuck you". Essentially, what we know now is that it's going to take decades to actually get someone in power who's not a right wing (pro-war, pro-torture, pro-extrajudicial killings, pro-corporate, anti-worker) extremist. Decades. Because ther

Obama stood as that, stood as "Change", and then gave us a big "Fuck you". Essentially, what we know now is that it's going to take decades to actually get someone in power who's not a right wing (pro-war, pro-torture, pro-extrajudicial killings, pro-corporate, anti-worker) extremist. Decades. Because there's no good reason to believe that the next jackass the Democrats put up will be any less extreme than Obama.

Quit getting so hung up on political parties. There is a candidate right now that is anti-war, anti-torture, anti-extrajudicial killings, anti-multinational corporate privilege, AND that has a long record of backing up his stated position with consistent stance and voting record. But he's trying to get the Republican nomination. Check it out some time.

I'm going to assume you're referring to Ron Paul. He and John Huntsman seem to be the only Republican candidates who have been showing signs of sense.

There are some big problems though:1. Neither Paul nor Huntsman have a chance of winning the nomination, because those same corporations that they refuse to kowtow to are the ones who are providing campaign funding and media mouthpieces. For examples of this phenomenon, see the various campaigns of Dennis Kucinich (only truly notable question sent his way duri

I'll get hate for saying this but I think Bush was better for one simple reason. Bush was an idiot but he was an HONEST idiot. he never hid what he wanted or covered it in bullshit, he was "the decider' dammit and he was gonna decide...err stuff or something.

Whereas Obama is a bold faced liar and will happily tell you anything you want to hear while cashing the check which he knows makes every word out of his mouth a lie. Just look at the completely bullshit responses he gave to the petitions, it was the mo

After so many lies and disappointments from this administration, I'm curious why you or anyone would expect otherwise, though I disagree with your "corporatocracy" remark as this is an expansion of government power.

Isn't it more an expansion of corporate power to give companies the right to make their own laws? If violating TOS is a crime, then a TOS is effectively law. The government's expansion is secondary to this. Theirs is the power to prosecute more "crimes" -- by broadening the definition of crime -- but it's the aggrieved party that has to report the crime in the first place, e.g. Microsoft, Arm & Hammer, Ford . . . whoever wrote the TOS in question.

Because the old terms never conceived of "plutarchy of artificial non-citizen people", especially when it is the interests of the corporation that are looked after, even more than the real-people owning them (an insane result, but hey, that's what we get, right?).

It's almost like Obama was really a plant, put there just to destroy the Democratic party by getting him elected on a populist platform and then screwing over everyone he voted for, so they'll never vote Democrat again.

Except that none of the other Democrats have come forward to publicly disown Obama from their party, and they've all been working hand-in-hand with him, so they're all complicit.

The entire democratic party sucks. But they suck less than the republicans. You should note that the Republican party has also been weakened by the Tea Parties brinkmanship, just as much as the democratic party has been weakened by its own failures.

I think the disillusionment with Obama's false hope and change is part of what is feeding into the Occupy movement. Occupy has a higher approval rating than the Democratic party, and the Republican party and the Tea Party. Its going to take more than a year to o

I'd ask what your new website would be named, but Slashdot's own terms of service say:

Prohibited activity includes, but is not limited to: (...) using any information obtained from SourceForge.net in order to contact (...) any user without such user's prior explicit consent (including non-commercial contacts like chain letters);

Oops, I guess replying at all is already contacting.Shit, I think I hear FBI vans.

This spells potentially problems for a lot of people because most people do not read the TOS or EULA documents.

They're often in some obscure link in tiny italic font because companies don't really care if you read them- they use them to kick you off when it is convenient for them.

How many people for example are aware of Slashdot's TOS that states you have to sacrifice a goat once a week if you disable ads.

Think I'm joking?

I am- but I bet the vast majority of slashdot users wouldn't know for sure because they havn't read the TOS.

I used to- but they're so long and full of legaleese I stopped.

If citizens are going to be held accountable for violating TOS as a criminal offense- we're either going to have a bunch more criminals OR in order for TOS to hold water they have to pass a dumb user test- be short, to the point and easily understandable by Joe the plumber.

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Oddly enough, the phrase "throughout the universe" is not an uncommon one anymore, at least in publishing and entertainment. I first stumbled across it in articles about recording contracts. I've seen it adopted in more and more places, as it seems to be an easy way to characterize "If I try to list them all, I'll forget one, so, no, I don't want to specify particular regions into which I can dump your crapola". Yeah, the "universe" part does seem a bit of overkill but, on the other hand, it does add that bit of cosmic surreality to the licensing experience. By now it's probably standard in all content licensing contracts.

There is another option.... people will be forced to avoid sites that have a ToS that is more than a couple sentences long. Nobody has the time, or the lawyers, necessary to fully understand these crappy terms anyway... Everyone assumes that if they do right by any normal civil expectation, that they won't be in trouble.

Again, business wins. Thanks for nothing, Obama. I'm glad you didn't pretend to be pro-life and do nothing about it like a Republican, but you did pretend to be for the people, and have d

If citizens are going to be held accountable for violating TOS as a criminal offense- we're either going to have a bunch more criminals OR in order for TOS to hold water they have to pass a dumb user test- be short, to the point and easily understandable by Joe the plumber.

As long as the ToS don't say that I have to buy the goats I'm going to argue that I was quite willing to do it and it's CmdrTaco's responsibility to ensure that the goats he ships me for sacrifice arrive.

However, that said, I am almost certain I must have committed a felony at some point in my life- there are so many laws- and so many I don't know- it is inconceivable to think I have not unwittingly committed one at some point in my life.

Fortunately outside the digital world- they would probably be hard to prove- and/or the police don't care to prosecute for obscure laws (or don't know them themselves).

It would be easy for a website to trip you up and prove it if they like.

There is also a difference between government passing rules- and corporations passing arbitrary complex TOS to getcha.

I vote for my congressman. I don't vote for the operator of goatsdoingcrazythingstosheep.com

Fortunately outside the digital world- they would probably be hard to prove- and/or the police don't care to prosecute for obscure laws (or don't know them themselves).

This is not fortunate. I mean, obviously it is fortunate that you haven't been thrown into prison, but it creates a situation where you could be tomorrow for little to no reason. Circumstantially connected to a major crime? Sleep with a police officer's wife? Fight that unfair traffic ticket? A few hours or days of work and they can almost certainly find something that will stick at least long enough to make your life miserable. Selective enforcement should be terrifying, it is very little different from saying "we can legally arrest and convict anyone, at anytime we feel like".

I vote for my congressman. I don't vote for the operator of goatsdoingcrazythingstosheep.com

Irrelevant. The Invisible Hand will ensure that everything is perfectly fair and just. In fact, we'd all be better off if we just eliminated our democratic government, and replaced it with a corporation, as The Invisible Hand will force it to behave much more responsibly than any government ever could.

Ever used a patented device without obtaining permission from the patent holder?

"Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.http://www.law.cornell.edu/uscode/35/271.html [cornell.edu] Bolding mine.

I live in Canada, and while we aren't without our problems as well, the headlines coming out of the US lately, including this one, are just ridiculous.

What is the problem? Since when did the government become so extremely pro-corporation, and anti-citizen? Why is there no pressure to do something, like cap contributions by corporations to political parties, or something, anything?

Why not? In 2008, Obama spent $7.39 per vote. McCain spent $5.78. As with every recent US Presidental election, the winner was the one who spent the most. $7.39 per voter really isn't that much. If you can convince voters to spend $10 on getting a president who works for the people, then you can outspend both parties. If you can persuade 5% of the electorate to give $100, then that's enough (based on past performance) to buy 50% of the popular vote...

I live in Canada, and while we aren't without our problems as well, the headlines coming out of the US lately, including this one, are just ridiculous.

More ridiculous than bill C-11?Because criminalizing the ripping of a legally purchased DVD to play it on your optical-less netbook (since you have to "break" CSS to do that) is the epitome of Canadian values?

I know many might jump on you for paraphrasing Ayn Rand, but I think you're correct. We've already seen that such rules ARE abused, and that almost any potential lawbreaking has been used as a foothold for surveillance or other actions which impact us as citizens.

It's not really an idea unique to Ayn Rand. The Catholic Church, Nazi and Communist parties all used it before she did. In Nineteen Eighty-Four, the party knew you were guilty and so did you, the question was only what you were guilty of and how serious it was.

If everything is illegal, it means the government gets to pick and choose who to prosecute, meaning you'd better be on their good side.

Same as it ever was.

"Did you really think that we want those laws to be observed?" said
Dr. Ferris. "We want them broken. You'd better get it straight that
it's not a bunch of boy scouts you're up against - then you'll know
that this is not the age for beautiful gestures. We're after power
and we mean it. You fellows were pikers, but we know the real trick,
and you'd better get wise to it. There's no way to rule innocent men.
The only power any government has is the power to crack down on criminals.
Well, when there aren't enough criminals, one makes them. One declares
so many things to be a crime that it becomes impossible for men to live
without breaking laws. Who wants a nation of law-abiding citizens'
What's there in that for anyone? But just pass the kind of laws that
can neither be observed nor enforced nor objectively interpreted - and
you create a nation of law-breakers - and then you cash in on guilt.
Now that's the system, Mr. Rearden, that's the game, and once you
understand it, you'll be much easier to deal with."

- Ayn Rand, Atlas Shrugged, 1957.

After Attorney General and eventual Supreme Court Justice Robert H. Jackson [roberthjackson.org], put it ca. 1940:

"With the law books filled with a great assortment of crimes,
a prosecutor stands a fair chance of finding at least a technical
violation of some act on the part of almost anyone. In such a case,
it is not a question of discovering the commission of a crime and
then looking for the man who has committed it, it is a question of
picking the man and then searching the law books, or putting
investigators to work, to pin some offense on him."

The only thing that's changed in the intervening 70 years is that in 1940, this sort of thing was regarded by the Judicial and the Executive branches as a bad thing.

"Did you really think we want those laws observed?" said Dr. Ferris. "We want them to be broken. You'd better get it straight that it's not a bunch of boy scouts you're up against... We're after power and we mean it... There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that's the system, Mr. Reardon, that's the game, and once you understand it, you'll bemuch easier to deal with."

Of course, Ayn Rand makes heroes of CEOs of giant corporations -- the same people who, in real life, buy these laws and regulations. There's a lesson here, but I doubt you or any other of the legion of Randroids will get it.

Ayn Rand makes heroes of CEOs of giant corporations -- the same people who, in real life, buy these laws and regulations

Actually, the book makes both heroes and villains out of those CEOs. In her world, there are 2 types of CEOs. Some are the ones that build the company up from nothing, who value the product and the quality of the creation. The others are the financial analyst/legal types who do it for the power. While Ayn Rand oversimplified everyone to being either black or white, don't accuse the her of glorifying corporations - for every "good" CEO in the Atlas Shrugged there are 100 "bad" CEOs.

If a judge orders you to break the law, what happens? The recent case with the judge requiring the divorcing people to swap facebook passwords - if you don't, you're in contempt. If you do, you're breaking the law. So who should one follow?

This whole fiasco reminds me, clearly, that business has priority over citizens in the US. Getting sick of this place more and more as the constitution and the purpose of our government has faded into the corrupt benefit of greed and exploit.

There was a time when I would have seen this as simple politics: appease the wealthy donors and corporations, but in the end the politicians don't follow through, or if they do it's struck down in court. Both sides know the game, both sides get something out of it [1], and in the end it doesn't matter too much. No harm, no foul. It's just politics.

But this isn't just politics: corporations creating law by TOS? That's the definition of corporatism. In the future we should expect this precedent to be used by auto manufacturers, home builders, coffee baristas, etc...

[1] The benefits to wealthy donors and corporations are: control of the conversation (setting the boundaries of 'reasonable' discussion), some laws passed in their favor (even if it takes them a long time), their interests are always addressed first during uncertain times (like with new technology).

" The current version of the Computer Fraud and Abuse Act (CFAA) poses a threat to the civil liberties of the millions of Americans who use computers and the Internet. As interpreted by the Justice Department, many if not most computer users violate the CFAA on a regular basis. Any of them could face arrest and criminal prosecution.

In the Justice Department’s view, the CFAA criminalizes conduct as innocuous as using a fake name on Facebook or lying about your weight in an online dating profile. That situation is intolerable. Routine computer use should not be a crime. Any cybersecurity legislation that this Congress passes should reject the extraordinarily broad interpretations endorsed by the United States Department of Justice.

In my testimony, I want to explain why the CFAA presents a significant threat to civil liberties. I want to then offer two narrow and simple ways to amend the CFAA to respond to these problems. I will conclude by responding to arguments I anticipate the Justice Department officials might make in defense of the current statute."

In a statement obtained by CNET that's scheduled to be delivered tomorrow, the Justice Department argues...

This interpretation is so obviously wrong, both in terms of common sense and as a textbook example that I suspect it's simply author Declan McCullagh trolling for outrage and click-throughs, perhaps unintentionally. Arguing that a violation of a private contract between two parties should be criminalized is simply not something a person who has passed any state bar --or a 1L criminal law course-- could make.

I'd like to see the "statement obtained by CNET", but of course it's nowhere to be found. All we have is McCaullagh's interpretation of it. I think... I hope... he's simply misreading the statement. It's convenient that they do not provide the source for which this article is entirely based upon.

See, this is what is wrong with American politics. The grandparent said don't vote for the Democrats or Republicans, vote for a third party. To which you reply 'the Democrats are just as bad'. It's as if the idea of doing anything other than voting for the Red or Blue team is so alien to American voters that it won't penetrate their brains.

Yes, He can fire anybody at the DOJ whenever he wants. There may be political repercussions, but he has that power. It was established by SCOTUS the first time a president fired a postmataster general. And you can bet that if you have the ability to fire someone, you certainly have the ability to control the direction of their efforts, either directly or indirectly.

They'll prime the precidents first with a test case sure to go their way. An easy way to do that would be to just charge someone who downloaded child porn with computer fraud as well for violating ToS. Pedophiles are so powerfully loathed by judges and juries alike, they'll just go with 'guilty' without a second thought just to add to the punishment. Then the precident can be used in other cases.